Sharon Pottinger v Keith Anderson
| Jurisdiction | Jamaica |
| Judge | Harris JA,Phillips JA,Lawrence-Beswick JA (Ag) |
| Judgment Date | 19 December 2013 |
| Neutral Citation | JM 2013 CA 132 |
| Docket Number | APPLICATION NO 24/2013 |
| Court | Court of Appeal (Jamaica) |
| Date | 19 December 2013 |
[2013] JMCA App 35
JAMAICA
IN THE COURT OF APPEAL
The Hon Mrs Justice Harris JA
The Hon Miss Justice Phillips JA
The Hon Ms Justice Lawrence-Beswick JA (Ag)
APPLICATION NO 24/2013
Sundiata Gibbs and Miss Shanique Scott instructed by Michael Hylton and Associates for the applicant
Gayle Nelson and Miss Analisa Chapman instructed by Gayle Nelson and Co for the respondent
COPYRIGHT - Claim for breach of copyright - Application to set aside default judgment - Costs
I have read in draft the judgment of my sister Phillips JA. I agree with her reasoning and conclusion and have nothing to add.
This is a matter that has had a long and unfortunate history throughout the courts. It involves a claim brought by the respondent against the applicant's mother, Sonia Pottinger, and a company, Push Music Publishing Co (“Push Music”), for breach of copyright, among other things. The application that is before this court is for permission to appeal the order of D.O. McIntosh J made on 28 February 2013 in which the learned judge dismissed an application seeking to set aside a default judgment. No formal order has been produced, but according to counsel for the applicant's note of the orders made, which was exhibited to the application for leave to appeal, and to which there appears to be no challenge from the respondent, the learned judge awarded costs in favour of the respondent, ordered that the parties were to proceed to assessment of damages on 4 July 2013 and that the applicant be granted leave to contest damages. McIntosh J also refused an oral application for leave to appeal and so the application before this court is made pursuant to rule 1.8(9) of the Court of Appeal Rules (CAR).
On 2 May 2007, the respondent commenced proceedings in the Supreme Court for ‘infringements and/or conversion of [his] copyrights in the song “Feel Like Jumping”, and for breach of moral rights in contravention of the Copyright Act as well as for breach [sic] of the tort of unlawful/wrongful interference with [his] business’. The respondent sought the following reliefs:
‘1. A declaration that Andisongs Publishing is the co-publisher and owner of copyright in the lyrics and melodies comprising the song “Feel Like Jumping”;
2. A full and proper account of all monies in the form of royalties, license fees or otherwise, obtained by or credited to the Defendants from their exploitation of the relevant song, recordings and Claimant's performances thereof and that the Defendants immediately pay all such monies to the Claimant;
3. Damages for, including but not limited to, infringement of copyrights, conversion and unlawful interference with the Claimant's business;
4. Aggravated and/or exemplary damages for infringement of copyrights.’
In the particulars of claim it is stated that the respondent is a composer, recording artiste, singer, actor, entertainer and songwriter ‘whose work comprise, inter alia, the song entitled “Feel Like Jumping” in respect of which he was the co-author and co-owner of the copyright including moral rights with a 50% share by agreement’. The action was brought against Sonia Pottinger as a ‘producer, manufacturer and distributor of sound recordings’ and Push Music, of which Sonia Pottinger was stated to be the owner and/or director, which was ‘the company responsible for the production, manufacture and distribution of sound recordings’. The respondent claimed that in or around 1967 and early 1968, he and Jackie Mittoo had written the lyrics and composed the melody to the song and it was recorded with the vocals of Marcia Griffiths. He claimed that he had registered the song with the Performing Right Society in the United Kingdom and at no time had he assigned or transferred his copyright in the song. He also claimed that he had not been under a contract of service or services with Sonia Pottinger or Push Music at the time the relevant song was written, nor had he written the song for them. The song was re-recorded some 10 years later using the original artiste and with his involvement as a creative producer and arranger. In 2001, he claimed, Sonia Pottinger and Push Music entered into an agreement with Kraftwerk Productions whereby Sonia Pottinger would provide a master licence for the usage of the sound recording in an advertising campaign and she granted a synch licence to use the song without having any interest in the song. Sonia Pottinger and Push Music, it was alleged, had exploited the relevant song as if they were the lawful publishers and/or the sole owners of the copyright in the song and as if the respondent has no part or share in the copyright and/or less than his true share.
An affidavit of service was filed on 9 May 2008, in which Mr Jeffrey Chang deponed that on 2 May 2008, he had attended upon certain premises with the intention of effecting service of the claim on Sonia Pottinger and Push Music, but upon being advised that they were no longer located at that address and having carried out his investigation of the premises and found no representative of either of them to accept service, he had sought to find an alternative address but had found none. Upon his return to the same premises on 6 May 2008, he located the offices of Push Music and was advised by Mr Paul Gibson, an employee of the company, that Sonia Pottinger had moved overseas and was suffering from Alzheimer's disease. Mr Gibson, however, accepted service on behalf of the applicants.
On 10 December 2008, an amended application for court orders was filed. Among the orders sought were that service on Push Music constituted service on Sonia Pottinger; that service outside of the jurisdiction on the applicant and service on Paul Gibson be permitted and that such service constituted valid service on Sonia Pottinger; that the time within which the claim should have been served be extended to 3 November 2008; and that the time for service of the claim form and the particulars be abridged. Among the grounds relied on were that Sonia Pottinger no longer resided in the jurisdiction and was not capable of accepting personal service and that the said documents had to be served on persons acting on her behalf. The application was supported by the affidavits of Analisa Chapman, attorney-at-law, and the respondent, both sworn to on 30 March 2009.
In her affidavit, Miss Chapman deponed that on 2 May 2008, a legal clerk employed to the attorneys representing the respondent at the time had faxed the claim form and particulars to a facsimile number provided by the respondent as the Florida offices of Sharon Pottinger-Gibson, whom it can be surmised is one and the same person as the applicant. She further deponed that after what appeared to have been a failed attempt at faxing the documents, they were re-sent and she spoke to a lady who identified herself as Sharon Pottinger-Gibson, who acknowledged receipt of all the pages of the claim. The fax transmission cover sheet, the claim form and particulars of claim were exhibited to her affidavit.
In his affidavit the respondent deponed that between 2003 and 2006 he or his representatives had been in negotiations with Push Music and Sonia Pottinger or their representatives with a view to settling the dispute, and in early 2007, as they were unable to speak to Sonia Pottinger, they were in contact with the applicant who indicated that her mother was living with her and that she would assume her mother's place in the negotiations. He further stated that after the claim was filed, he or his representatives were in continued discussions with the applicant and other persons affiliated with Sonia Pottinger and Push Music and efforts were being made to arrive at a settlement agreement. These discussions continued until late April 2008. He stated that at all material times the applicant had represented herself as the party who would have conduct of the matter and the administration of her mother's affairs and that of Push Music, due to her mother's failing health. He stated also that shortly after the applicant's receipt of the claim, the law firm of Pelosi, Wolf, Effron and Spates, had contacted the attorneys-at-law who were acting on his behalf at the time indicating that they were in receipt of the claim and subsequently, by letter dated 18 November 2008, they wrote confirming receipt of the documents and that they represented Sonia Pottinger.
The letter dated 18 November 2008, which was exhibited to the affidavit, was written by Mr John Pelosi who indicated that he was writing in response to the claim filed by the respondent. The letter stated that Sonia Pottinger had failed to render to the respondent 25% of the sum that she had received for the use of the master and synchronisation rights, which it was said, represented 50% of the publishing portion of the sync and master use payment. Mr Pelosi stated that despite the fact that the limitation period on the claim had ‘likely lapsed’, Sonia Pottinger was desirous of paying over that amount plus interest since March 2001 in settlement of the claim. He further indicated that Sonia Pottinger was rejecting any claim by the respondent that her rights to the master recording embodying the album ‘Lots of Love’ by Bob Andy should revert to the respondent. This letter was copied to the applicant. Also in his affidavit the respondent stated that by the time that it was clear to him or his representatives that the representatives of Sonia Pottinger and Push Music were not going to put forward or finalise a settlement agreement, the best option for service of the claim within the time was to fax same to the applicant and to deliver same to the only known offices of Push Music.
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